Cons Will Kill Textualism to Hurt Obamacare

Antonin ScaliaI read a remarkable article today over at SCOTUSblog today by Yale Law Professor Abbe R Gluck, The Grant in King — Obamacare Subsidies as Textualism’s Big Test. She is a big advocate of textualism — the theory that judges should base the decisions only on the text of the law. As I discussed in, Originalism, Textualism, and Politics on the Supreme Court, this is usually misidentified as “originalism.” So textualism is the theory that supposedly animates such conservative judicial titans as Scalia and Thomas.

According to Gluck, the case in King v Burwell, which threatens to destroy Obamacare, is the ultimate test of textualism. If Scalia and company find for the plaintiffs, they will do so because they don’t like Obamacare and it will “threaten all that textualists have accomplished.” She argued that the case is not about what the law says versus what the intent of the legislators was — the critical issue in textualism. Rather it is all about what the law itself says. In fact, the plaintiffs can only make their case by resorting to non-textual arguments about what Congress did or did not mean when it wrote the law.

Clarence ThomasShe further noted that Scalia himself recently argued that “the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” And in another case he argued that the court should read legislation such that it “does least violence to the text.” So, is the “liberal” reading of the text this time the “textual” reading? It would seem so.

The critical clause that the plaintiffs have latched onto is in section 1401 that states that subsidies will be based upon the premiums found through the “Exchange established by the State under 1311.” Section 1311 gives the law about the state exchanges. But that isn’t the end of it:

Section 1401 can still be read literally because the section that authorizes the federal exchanges, Section 1321, provides that if a state does not establish an exchange under Section 1311, the Department of Health and Human Services (HHS) “shall… establish and operate such Exchange within the State.” In other words, HHS must “establish” a Section 1311 exchange, which is a state exchange. Moreover, the Act defines “Exchange,” with a capital E, three times in the statute as a “state” exchange. And HHS, in Section 1321, is told to establish “such [capital E] Exchange.” The Court need not add or delete a single word of the ACA to reach this conclusion.

It seems pretty straight forward. The plaintiff’s case is dependent upon saying, “We know that Congress meant to not provide these subsidies to the states because they wanted to encourage the states to set up their own exchanges.” But this isn’t in the text of the law. I would add that the evidence of this being the case is pretty weak anyway. The interesting thing in this case is that it shows that the conservative efforts to destroy Obamacare has a scattershot approach. I doubt very seriously that the people at the Cato Institute who came up with this idea thought very much of it. But the idea is just to throw everything at the courts and hope something sticks. The last time it did, it was, “Could the government force people to eat broccoli?!”

John RobertsGluck seems a little freaked out about this case. I can’t speak for her, but I assume she’s thinking the same thing that I am: the conservative textualists don’t much believe in the theory. It has always been a simple justification for coming to their conservative (neolithic) decisions. And now that a case comes up where the choice is either to apply the textualism they supposedly believe in or to destroy a law they don’t like for other reasons, they will simply abandon textualism.

Of course, here we are primarily talking about the two justices: Scalia and Thomas. Kennedy and Alito will vote for the plaintiffs just because they hate the law. That leaves Roberts, who voted to uphold the law in National Federation of Independent Business v Sebelius. Wouldn’t he vote to uphold it again? Probably not. As Bill Gardner noted earlier today, this case allows the conservative justices to greatly harm the law (very likely fatally) without killing it outright. It doesn’t look good.

What’s sad about all this is that it shows what a sham the Supreme Court is. At this point, the conservatives on the court are as partisan as any member of Congress. I fully expect to see Scalia and Thomas cast aside all their high ideals for a chance to strike a blow against Obama’s most important piece of legislation. But it won’t matter. Anyone who is not already convinced that they are partisan hacks will never see what’s really going on.

I Shouldn’t Have Watched The Replacements Again

The ReplacementsIn 2000, I actually saw the film The Replacements in the theater. It is a film starring Keanu Reeves, Gene Hackman, and Brooke Langton. And it tells the story of a group of scab players during a football players strike. At the time, I thought it was good enough. It’s just a light comedy that truly does have some funny moments. And I like Reeves and Hackman. And Langton is both a pretty and capable actor. I should have just kept those memories and not revisited the film. What I just listed is still true of the film. But everything else swamps the little that is good.

If I wanted to, I could easily crank out a couple thousands words about the truly vile treatment of unionization in this film. It’s still amazing to me that the default America position on unions is exactly what the power elite want. In the film, the players are going on strike because the multi-million dollar players are not making enough money, “Do you know how much insurance is on a Ferrari, mother?!” That’s an exact quote and that is the the essence of the film. Other than at the very end of the film, the owners are presented as poor victims of the evil players’ salary demands.

So the film is portrayed just as the Walton family wants: the powerful union players and the poor but scrappy non-union players who are just looking for a chance. And that’s fine, except of course, that the truly powerful people are not even mentioned in this pairing. People come to stadiums built with public money to see the union players, but it is the billionaire owners who make the lion share of the money. And according to America, the bad guys are the ones who the people are paying to see. Charming.

The treatment of unionization would be enough to ruin the film for me. But what really makes the film stand out is that it is as tired as anything I’ve ever seen. It is nothing but cliched characters put in cliched situations. There’s the big black gangsta who holds his gun sideways, the foul-mouthed, chain-smoking Welsh kicker, and skinny coward who runs very fast. (For the record, someone that fast would be employed as a safety, regardless of his catching abilities.) The film ends with the replacements winning the the last game of the season on the last play and getting into the playoffs, even though none of them will be playing in the playoffs because the strike is now over. It also has a very boring romance that mostly consists of one kiss — played embarrassingly for comedy — followed by a forced third act problem where Reeves stands up Langton, apparently because Reeves was taking advice from the evil unionized quarterback.

The funniest thing in the film is the cheerleader tryouts. And my understanding was that these were not scripted. Female actors were asked to come in and do bits. The best one was a woman dressed up to look more or less like a librarian. She then very awkwardly cheered, “Let’s here it for the quarterback. Hey-hey, ho-ho! Could anyone play better? Say-say, no-no! Tackle, tackle, tackle, tackle, tack, tack, tack! Show those other boys what they lack, lack, lack! If I gave you a dollar, you could keep most of the change, ’cause all I really want is a quarter back!” It is by far the most charming thing in the film.

The main thing I felt watching the film was battered. The film pushes the viewer from one bit of plot to another — at its best, it marks time from one gag to the next. But most of the comedy takes place in the first half of the film. By the second half, the film takes itself more seriously, although I truly can’t imagine why. Another thing I can’t understand is why Reeves and Hackman would want to be in this film. Did Hackman need to buy a new home somewhere? Did Reeves need more anti-stalking equipment? That’s all I can think of, because clearly they couldn’t have thought much of the film going in.

Of course, my normal standard for a film is whether it works; does it succeed in doing what the filmmakers set out to do? In a sense, it did. But that’s just because the filmmakers were clearly trying to make a commercial piece of garbage without working very hard. But that is such an ignoble effort that I think the the normal rules don’t apply. Anyway, the film doesn’t really work as an entertainment. It has its moments, but mostly the viewer feels dragged through it. And as it is, the film barely made back its production costs during its original release — indicating that on the “commercial” front, the film didn’t succeed.

Liberals and Conservatives Are Different

Chris MooneyIn a recent experiment by psychologists Russell Fazio and Natalie Shook, a group of self-identified liberals and conservatives played BeanFest. And their strategies of play tended to be quite different. Liberals tried out all sorts of beans. They racked up big point gains as a result, but also big point losses — and they learned a lot about different kinds of beans and what they did. Conservatives, though, tended to play more defensively. They tested out fewer beans. They were risk averse, losing less but also gathering less information.

One reason this is a telling experiment is that it’s very hard to argue that playing BeanFest has anything directly to do with politics. It’s difficult to imagine, for example, that results like these are confounded or contaminated by subtle cues or extraneous factors that push liberals and conservatives to play the game differently. In the experiment, they simply sit down in front of a game — an incredibly simple game — and play. So the ensuing differences in strategy very likely reflect differences in who’s playing.

—Chris Mooney
The Origin of Ideology

Five Years

Frankly CuriousToday is the fifth anniversary of Frankly Curious. It was on 10 November 2009 that I wrote my first article, Everything Interesting for Everyone Interesting. All things considered, it isn’t a bad article. I was clearly trying a bit too hard, however.

For the first couple of months, I wrote ten or more articles. But after several months, it dropped to a trickle: two or three per month. And then I discovered that I could write about politics and things picked up. But it wasn’t until about two years that Frankly Curious became a dependable daily thing. And then leading into the 2012 election, it became more like an addiction. In fact, in those days, I sometimes did ten articles per day. Now I try to avoid doing more than five articles per day. Anyway, I think the average article lengths are longer now — more in the 700 – 800 word length, and quite often over a thousand words.

Anyway, I’m kind of amazed that this thing is still going. And that it continues to develop. There are more readers every month that passes. It is actually kind of shocking. But I guess it feeds on itself. The more content you create, the more things there are to show up in search results. And having built it, I can’t image allowing it to slip back. Although at some point, I may well have to do that. Or I’ll just die, in which case I don’t care.

By way of celebration, here is David Bowie’s apocalyptic “Five Years”:

Claude Rains Was the Invisible Man

Claude RainsOn this day in 1889, the great actor Claude Rains was born. Most people know him from Casablanca where he was, “Shocked to find that gambling is going on in here!” Or you know him as the corrupt but ultimately decent Senator in Mr Smith Goes to Washington. Or maybe you are a fan of The Rocky Horror Picture Show and you know that, “Claude Rains was The Invisible Man.” That last one was Rains’ first real film role in the James Whale classic.

Rains was well into his forties by the time he made it to Hollywood. By the early 1920s, he was a successful stage actor as well as an acting teacher at the Royal Academy of Dramatic Art. In fact, he taught two of the greatest actors of the century: John Gielgud and Laurence Olivier. By the late 1920s, he had moved to New York, where he was a star on Broadway. He came to Hollywood in 1933 to make The Invisible Man and the rest, as they say, is history.

But maybe not. I think people tend to under-appreciate how important Rains was. He had major parts in 50 feature films, in addition to an active later career in television. And he was the first actor to receive a million dollars for a film, in George Bernard Shaw’s Caesar and Cleopatra with Vivien Leigh. Of course, the film was a flop. But I don’t know why. I haven’t ever seen it. (But I’ve requested it; I’ll let you know.)

Let’s watch a little of Rains’ work. First, here is the trailer for The Invisible Man:

Here is a wonderful scene from Caesar and Cleopatra:

And since I can’t find anything from Notorious, let’s just go with a little Casablanca:

Happy birthday Claude Rains!